Harvel H. Cosper and Stella Cosper v. Southern Pacific Company, a Corporation

Appellants filed an action in the United States District Court for the District of Arizona against appellee for damages and equitable relief arising from appellants’ claim that appellee breached an implied contract to maintain ditches and dykes on an easement granted by appellants’ predecessors in interest to appellee’s predecessors in interest. Jurisdiction in the district court was based on diversity of citizenship ( 28 U.S.C.A. § 1332 ). The case was tried to a jury. At the conclusion of the evidence the district court instructed the jury, and then the jury retired to consider the case.

After the jury had been deliberating for some hours it indicated that it had some questions. The jury returned to the court, and in answer to a written question submitted by the jury the district judge gave a further instruction concerning the “Act of God” defense raised by appellee. The jury then retired a second time, returning a verdict for appellee after a short deliberation. A motion for a new trial was later denied by the district court and this timely appeal followed. This court has jurisdiction under 28 U.S.C.A. § 1291 . Appellants’ contention is that the- instruction given by the court…